Can the alleged incapacitated person (AIP) refuse to comply with information requests from the court evaluator or the other parties during a guardianship proceeding?
This issue arose in Matter of Aida C. 44 AD3d 110 (4th Dept 2007), where the AIP asserted that her liberty interest was at stake and she therefore could not be compelled to speak to the Court Evaluator without violating her constitutional rights against self-incrimination. The Fourth Department disagreed, concluding that the AIP’s constitutional rights against self-incrimination were inapplicable in the guardianship proceeding. The court reasoned that the case was civil (rather than criminal), and that any confinement would be for the purpose of care and treatment rather than punishment.
The Fourth Department nevertheless held in Matter of Aida C. that the trial court lacked the power to compel the AIP to meet with the court evaluator, reasoning that Mental Hygiene Law Article 81 did not impose any such affirmative obligation on the AIP. The Fourth Department further held that the trial court erroneously sought to punish the AIP for her failure to cooperate with the court evaluator, concluding that the AIP was not a “party” to the guardianship case so as to permit civil contempt against the AIP under Judiciary Law § 753 and that the petitioners failed to establish that they had sustained any redressable injury for which to punish the AIP.
Similarly, In Matter of Parker, 162 Misc2d 733 (Sup Ct, Onondaga County 1994), the petitioner objected to the dismissal of the petition as defective. During oral argument, petitioner’s counsel asserted that the AIP had refused to divulge his financial resources. In response to this argument, the court concluded in its decision that “it is certainly within [the AIP’s] rights to maintain the confidentiality of such personal matters [and that] his refusal in this area may be some indication of awareness as opposed to incapacity” (id. at 735).
Recently, in Matter of Elizabeth TT. (Suzanne YY.–Elizabeth ZZ.), ___AD3d___, 2019 NY Slip Op 06667 ), the Third Department concluded that the AIP could not be forced to undergo a neuropsychological evaluation or compelled to testify against her own interests, concluding that there was no duty for an AIP to abide by a court evaluator’s recommendation that he or she undergo a neuropsychological evaluation to assess his or her present cognitive condition.
The courts have also struggled with deciding whether an AIP may be compelled to testify at the hearing. In Matter of Heckl, 66 AD3d 1344 (2009), the Fourth Department held that the trial court may compel the AIP to testify at the guardianship hearing. However, this conclusion has been rejected by several other courts. In Matter of Elizabeth TT., for example, the Third Department concluded that there was no statutory requirement in Mental Hygiene Law article 81 that compels the AIP to testify at a hearing and that a petitioner must rely on other evidence to meet his or her burden.
Similarly, in Matter of A.G., 6 Misc 3d 447 (Sup Ct, Broome County 2004), the court agreed that an AIP cannot be forced to testify in an article 81 proceeding. The court relied upon federal and state constitutional grounds and the statutory right against self-incrimination incorporated in CPLR 4501, among other things.
In addition, in Matter of G.P., 37 Misc 3d 418 (Sup Ct, Dutchess County 2012), the court strongly criticized the court’s reasoning in Matter of Heckl and concluded that AIP could not be compelled to testify as a witness.